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When the 2nd U.S. Circuit Court of Appeals issued guidance on the new shape of the federal sentencing guidelines, it had to consider the word “consider.” After two recent U.S. Supreme Court decisions invalidated portions of the guidelines — leaving a once-mandatory section on judicial enhancements of sentencing ranges effectively “advisory” — the circuit initially responded by issuing U.S. v. Crosby, 03-1675. In Crosby last week, the circuit said the U.S. Supreme Court decisions in U.S. v. Booker and U.S. v. Fanfan did not give judges carte blanche to fashion sentences. Instead, the ruling said judges should exercise their broader discretion with a good dose of “consideration” for the guidelines structure. Booker and Fanfan, taken together with the factors outlined in �3553(a) of the Sentencing Reform Act, Judge Jon O. Newman wrote in Crosby, “do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of the sentencing judge.” In addition to outlining in Crosby how the circuit would review sentences on appeal for “reasonableness,” Judges Newman, Amalya Kearse and Jose A. Cabranes released a second opinion on Friday: U.S. v. Fleming, 04-1817. Fleming was an appeal from an Eastern District judge’s decision to send a defendant back to prison for violating the terms of his unsupervised release — and it gave the circuit a chance to expand on the meaning of the word “consider.” Daniel Lee Fleming had served a prison term for sexually abusing a child when he violated a 1-year term of supervised release and was sent back to prison for another 9 months. He later received a 30-month sentence for conspiracy to assault a prisoner during his sentence on the child abuse charge. The Eastern District’s Probation Department sought to revoke Fleming’s supervised release from that second sentence because he allegedly used narcotics on several occasions and failed to take part in a drug treatment program. Judge Nina Gershon sentenced Fleming to 2 years behind bars. On appeal, Fleming claimed Gershon failed to adequately “consider” that his guideline range for revocation of unsupervised release under �3583(e) was 5 to 11 months in prison. He also said the 2-year sentence was “unreasonable.” Newman said the circuit had previously encountered �3583(e)’s requirement that judges “consider” most of the factors in �3553(a), including the nature and circumstances of the offense, the history and characteristics of the defendant, and the need to deter criminal conduct. And while the circuit’s decisions “do not rule definitively” on the meaning of consider in subsection 3583(e), Judge Newman said “they take a deferential approach and refrain from imposing any rigorous requirement of specific articulation by the sentencing judge.” CONSULTING THE DICTIONARY Fleming argued one dictionary’s definition of the word consider: “to reflect on; think about with a degree of care and caution” — and said that Gershon failed to meet that definition. But Newman said the record made it clear Gershon was well aware of the 5- to 11-month range and “explicitly decided a longer term was warranted.” “We appreciate that lexicographers, contemplating various contexts in which the word ‘consider’ is used, might infuse the word with a meaning that implies a measure of sustained reflection,” Newman said. “But our context is that of experienced district judges, familiar with both the substantive content of relevant law and procedural requirements, who face the daunting task of administering heavy caseloads. “In this context, we continue to believe that no precise verbal formulations should be prescribed to demonstrate the adequate discharge of the duty to ‘consider’ matters relevant to sentencing.” So if judges are “aware of both the statutory requirements and the sentencing range or ranges that are generally applicable, and nothing in the record indicates misunderstanding about such materials or misperception about their relevance, we will accept that the requisite consideration has occurred,” he said. The circuit went on to find that Gershon’s sentence of Fleming was reasonable. The case was distinguishable from Crosby, where the circuit remanded the case for the district court to weigh whether it would have given a different sentence in light of Booker and Fanfan. “Here, the sentencing judge, functioning under a sentencing regime that, even before Booker/Fanfan, was advisory with respect to revocation of supervised release, knew that she was not bound by the policy statements and chose to exercise her discretion,” Newman said. “In any case, the two-year sentence was well-considered.” Darrell B. Fields of the Legal Aid Society represented Fleming. Assistant U.S. Attorneys Michael J. Ramos and Cecil C. Scott represented the government.

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